Spain Referred To ECJ Over Exit Tax Provisions

by Ulrika Lomas, Tax-News.com, Brussels

24 March 2009

The European Commission has decided to refer Spain to the European Court of Justice for its tax provisions which impose an exit tax on individuals who cease to be tax resident in Spain. The provisions are incompatible with the free movement of persons provided for in Articles 18, 39, 43 of the Treaty and Articles 28 and 31 of the EEA Agreement, according to the Commission.

Under Spanish law, a taxpayer who transfers his residence abroad has to include any unallocated income (i.e. income that has still to be taxed) in his tax declaration for the last tax year in which he is still considered a resident taxpayer. He therefore will be taxed on such income immediately, contrary to those taxpayers that maintain their residence in Spain.

The Commission considers that such immediate taxation penalises those persons who decide to leave Spain, by introducing less favourable treatment for them in comparison to those who remain in the country. The Spanish rules in question are therefore likely to dissuade individuals from exercising their right of free movement and, as a result, constitute a restriction of Articles 18, 39 and 43 EC and the corresponding provisions of the EEA Agreement.

The Commission's opinion is based on the EC Treaty as interpreted by the Court of Justice of the European Communities in its judgment of March 11, 2004 in Case C-9/02, De Lasteyrie du Saillant, as well as on the Commission's Communication on exit taxation (COM(2006)825 of December 19, 2006).

Given that the Spanish tax rules were not amended to comply with the reasoned opinion sent to Spain in October 2008, the Commission has decided to refer the case to the Court of Justice.

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